The objectives of the Act are as follows:
1 (a) To protect an employee, whether in the private or the public sector, from being subjected to an occupational detriment on account of having made a protected disclosure;
46 (b) to provide for certain remedies in connection with any occupational detriment suffered on account of having made a protected disclosure; and
(c) To provide for procedures in terms of which an employee can, in a responsible manner, disclose information regarding improprieties by his or her employer
(2) This Act applies to any protected disclosure made after the date on which this section comes into operation, irrespective of whether or not the impropriety concerned has occurred before or after the said date.
(3) Any provision in a contract of employment or other agreement between an employer and an employee is void in so far as it;
(a) Rationales to exclude any provision of this Act, including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract; or
(b) (i) purports to preclude the employee; or
(ii) Has the effect of discouraging the employee, from making a protected disclosure (The Protected Disclosures Act 2000: 3-4).
3.3.2. Application of the Act
The PDA was passed with a view to create a culture in which employees may disclose information on criminal and other irregular conduct in the workplace in a responsible manner, thus promoting the eradication of crime and misconduct in organs of state and private bodies (The Protected Disclosures Act 2000: 3-4). Each of the provisions was designed to ensure that the disclosure is protected and has certain requirements to be complied with. If a disclosure is made to a legal representative, for example, there are only a few requirements, but the requirements become more comprehensive as one moves up the ladder, with the most comprehensive requirements applying to making a general disclosure.
Camerer (2001: 5) quotes Richard Calland, Executive Chair of the Open Democracy Advice Centre (ODAC), as having said, "At the heart of the Act is the notion that prevention is better than cure. It strongly encourages whistle blowers to disclose first of all to their employer, in order that the employer should have the opportunity to remedy the wrongdoing. Potential whistle blowers need to know that they must first go through this door, where the test is that of good faith, rather than making a broader disclosure which would require higher tests."
47 When it comes to reporting wrongdoing, the Act does not favour the interest of the employees, but rather those of the employer. The Act is specifically structured in a way that best serves the interests of organisations that choose to be responsible and are held accountable. Only when internal channels have been exhausted or fail, are broader disclosures to external bodies protected, meaning that the disclosure must be made in accordance with the prescribed process as represented in the Act (Camerer 2001: 6).
If employers respond appropriately to the good faith concerns raised by their employees, the Act should be applied infrequently rather than recurrently. Ultimately, the law protects both employers and employees, by informing employees that it is acceptable to blow the whistle and putting procedures in place for them to do so. Employers thus receive early warning signs of potential problems in their organisations and can address them before they become public knowledge. An employee who raises legitimate concerns in an environment of trust to those able to address those concerns cannot be discriminated against for doing so in any way relating to his or her occupation.
The preamble to the Act (The Protected Disclosures Act 2000: 1) echoes its policy objectives and gives recognition to the fact that, 1) The Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the rights of all people in the Republic and affirms the democratic values of human dignity, equality and freedom; 2) section 8 of the Bill of Rights provides application of rights in the Bill of Rights, taking into account the nature of the right and the nature of any duty imposed by the right; 3) criminal and other irregular conduct in organs of state and private bodies are detrimental to good, effective, accountable and transparent governance in organs of state and open and good corporate governance in private bodies and can endanger the economic stability of the Republic and have the potential to cause social damage (Camerer 2000: 1).
Neither the South African common law nor the South African statutory law makes provision for procedures in terms of which employees may, without fear of retaliations, disclose information relating to suspected or alleged criminal or other irregular conduct by their employers, whether in the private or the public sector (Camerer 2000: 2). Every employer and employee should have a responsibility to disclose criminal and any other irregular conduct in the workplace and all employers have a responsibility to take all necessary steps to ensure that employees who disclose such information are protected from any retaliations as a result of such disclosure (Camerer 2000: 2). The main aim here is to create a culture which will
48 facilitate the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner by providing comprehensive statutory guidelines for the disclosure of such information and protection against any retaliation as a result of disclosures (The Protected Disclosures Act 2000: 2).
At its core, the PDA contains a simple idea, that it is in the common interest of both the employer and the employee (responsible, potential whistle blower) to blow the whistle internally, within the organisation, rather than externally, to, for example, the media which could generate irreversible damage. Once a disclosure is made externally the stakes are greater for both the employer and the employee due to the damning nature of the media without concrete evidence. For the employer it may result in damaging publicity, whether reasonable or not. For the employee, it is much more likely that the employer will react negatively to the disclosure, with negative consequences for the employee and his or her future work prospects either within the current organisation or elsewhere.